CYIL 2011

CZECH COURTS AND INTERNATIONAL LAW Promulgated international agreements, the ratification of which has been approved by the Parliament and which are binding on the Czech Republic, shall constitute a part of the legal order; should an international agreement make a provision contrary to a law, the international agreement shall be applied. Article 10a of the Czech Constitution also allows certain powers of the Czech Republic to be transferred to an international organization or institution. The Euro amendment established, in Article No. 87, Section 2, a preventative review of the constitutionality of international treaties and annulled the international treaties on human rights and fundamental freedoms as reference standards for abstract reviews of constitutionality. This change was quite important for the application of international treaties by ordinary courts. While the previous wording of the Constitution was not so clear on this point, from procedural rules it was quite clear that ordinary courts could not review potential conflicts between domestic law and international treaty but had to instead refer the matter to the Constitutional Court. From the new wording of the Constitution, it was the duty of ordinary courts not to apply the domestic rule and to apply an international treaty instead if there would be an inconsistency between these two norms. Most scholars welcomed the Euro-amendment, but some of them feared that due to the absence of transitional provisions, the treaties on human rights and fundamental freedoms had ceased to be part of the Czech law. By amending the Constitutional Court Act, 9 the powers of the Constitutional Court to decide on measures necessary for implementing a decision of an international court which is binding on the Czech Republic if they cannot be executed otherwise, became much more consistent with the terms of the Czech Constitution than under the restrictive original concept. The most significant change was the possibility to reopen a procedure before the Constitutional Court in a criminal case after the EctHR had decided that the Czech Republic has infringed the rights guaranteed by the ECHR. 4. Decision Practice of the Czech Courts With some exceptions, it can be hardly be said that there exists settled case law of the Czech courts in respect of the relationship between international and Czech domestic law. Many issues were resolved only once in the case law of the courts, often in decisions that were not published in publication collections, and thus it cannot be ruled out that in the future such cases could be resolved differently. Many issues were dealt with by the courts accidentally and often only obiter dictum , without a detailed justification addressing the problem. Some issues concerning the relationship between international and domestic law have not been resolved by the courts at all as yet. Notwithstanding the above, some of the decisions of the courts are certainly worth exploring further. I present two cases that are the most interesting in my opinion. The first one because it influences to a large extent the interpretation of the Euro-amendment to the Czech Constitution and is in my opinion even contrary to the text of the Constitution. The second one is interesting because it 9 Act No. 182/1993 Coll., on the Constitutional Court, enacted June 16, 1993, with effect from July 1, 1993.

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